332 F.3d 68 (2nd Cir. 2003), 00-93, Stephenson v. Doe

Docket Nº:00-93
Citation:332 F.3d 68
Party Name:Stephenson v. Doe
Case Date:June 13, 2003
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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332 F.3d 68 (2nd Cir. 2003)

Jamal STEPHENSON, Plaintiff-Appellant-Cross-Appellee,


John DOE, Detective, New York City Police Department, John Doe, Detective, New York City Police Department, Lee Brown, Commissioner, New York City Police Department, City of New York, New York, New York individually and in their official capacities & New York City Police Department, Defendants-Appellees,


Thomas Dingler, P.O., Defendant-Appellee-Cross-Appellant.

Nos. 00-93, 00-95.

United States Court of Appeals, Second Circuit

June 13, 2003.

Argued: Jan. 6, 2003.

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Alexandra A.E. Shapiro (Noreen Kelly-Najah; Jennifer Herring, of counsel), Latham & Watkins, New York, NY, for Plaintiff-Appellant-Cross-Appellee.

Elizabeth S. Natrella, New York, N.Y. (Michael A. Cardozo, Corporation Counsel of the City of New York; Pamela Seider Dolgow, of counsel), for Defendant-Appellee-Cross Appellant.

Before: FEINBERG, F.I. PARKER and STRAUB, Circuit Judges.

FEINBERG, Circuit Judge.

Plaintiff Jamal Stephenson appeals from a judgment of the United States District Court for the Eastern District of New York (Frederic Block, J.) for defendant Thomas Dingler, based on a jury's finding of qualified immunity after a seven-day trial. 1 The complaint, brought under 42 U.S.C. § 1983, alleged that police officer Dingler used excessive force when he shot Stephenson in the back during the course of an arrest, in violation of the Fourth Amendment. Plaintiff, who is partially paralyzed as a result of the shooting, sought compensatory and punitive damages. The jury found that Dingler had used excessive force against Stephenson but was nevertheless entitled to qualified immunity. On appeal, Stephenson argues that the district court erred in submitting the qualified immunity issue to the jury because the defense was waived and was barred as a matter of law. For reasons set forth below, we vacate the judgment and remand for a new trial.

I. Background

A. Procedural History and First Trial

Stephenson brought his action in April 1996. His amended complaint alleged claims against officers Dingler and Thomas Collins and the City of New York. Defendants filed an answer generally denying Stephenson's claims. In various pretrial submissions, including the parties' joint pre-trial order, defendants also asserted the defense of qualified immunity on behalf of Dingler and Collins. They also argued qualified immunity in their trial memorandum of law, and in their proposed jury instructions requested that the court decide the merits of the defense.

The case was tried before a jury in December 1999. By the close of evidence, Stephenson had withdrawn his claims against Collins and the City, leaving only an excessive force claim against Dingler. The qualified immunity issue was neither argued nor submitted to the jury, apparently on the understanding that the district court would decide the issue if there was a verdict for plaintiff. 2 The district court did not reach the issue because the jury deadlocked on the underlying claim of excessive force, and the court declared a mistrial. Before setting the case for retrial,

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the court told defense counsel that while the court "can't prevent" a pretrial motion for qualified immunity, its "inclination would be to deny it [because] ... there are these factual issues that have to be dealt with." The second trial commenced on January 31, 2000.

B. Evidence at Second Trial

At around 10:00 p.m. on May 19, 1993, Dingler shot Stephenson during a foot chase near a housing project in Brownsville, New York. The police had a warrant for Stephenson's arrest based on a 1991 indictment for murder in the second degree and weapons possession. 3 On that evening, Dingler and five other NYPD officers in plain clothes set out to look for Stephenson. They had received a call from a security officer for the Brownsville project where Stephenson's family lived reporting that Stephenson had been in the area with a gun "in his belt, in his waistline."

After canvassing the area in an unmarked car and van for some time, the officers spotted Stephenson near a car talking to a young woman. Stephenson began to run as Dingler and Collins left the car to approach him. The two, joined by officer Alan Bernagozzi, chased Stephenson on foot while Steven Ward and two other officers pursued in the van. Stephenson ran into a nearby park and scaled a 10-foot high chain link fence separating the park from a basketball court. Dingler fired one shot through an opening in the fence. The bullet entered Stephenson's back and lodged in his spine, leaving him with permanent partial paralysis and loss of his bladder and sexual functions.

The parties' accounts diverge on a number of key issues, particularly whether Stephenson was armed. Stephenson testified that he was unarmed and running toward the basketball court, away from Dingler, when he was shot. Dingler testified that while he did not see a gun when he first approached Stephenson, he found it suspicious that Stephenson was wearing a jacket on a hot night. According to Dingler, Stephenson stopped running after landing on the other side of the fence and turned back toward him. Dingler testified that he saw a "shiny silver object" in Stephenson's hand that he believed was a gun and fired one shot because he "believed deadly force was going to be used against [him]." 4 Dr. Martin Fackler, a ballistic wound expert for the defense, opined that Dingler's testimony was compatible with the fact that Stephenson was facing "basically straight ahead" when the bullet struck him from behind. Dr. Fackler suggested that Stephenson may have moved his body in the second it took for Dingler to recognize the alleged threat and shoot.

The defense also claimed that the object Dingler allegedly saw turned out to be an eight and a half inch steak knife rather than a gun. Bernagozzi, the first officer to reach Stephenson after the shooting, testified that he found the knife nearby, picked it up and handed it to Ward. Ward testified that he kept the knife in his pocket to secure it from a growing crowd and "vouchered" it at the precinct a few hours later. Stephenson's counsel argued to the jury that the knife had been planted by the

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officers involved in the chase. Charles Haase, plaintiff's expert on police procedures, testified that the knife was improperly safeguarded as it was not tested for fingerprints or photographed by the crime scene analysts who arrived later. Over defense counsel's objection, Haase also offered an opinion that police records of that night, apparently indicating that police officers called to the scene were available for assignment soon after the shooting, were inconsistent with the defense's claim that irregularities in the handling of the knife were due, in large part, to crowd control problems.

In addition, the parties disputed whether the officers chasing Stephenson gave him adequate warnings during the chase and before the shooting. Dingler testified to shouting "police, stop" during the chase when Stephenson was about 25 feet away, which other officers testified to hearing. However, Dingler could not remember whether he gave any warning just before he shot Stephenson. Officer Collins testified that he did not hear Dingler give a warning before the shooting. Stephenson maintained that he ran off because he saw guns and did not hear any warnings.

C. Precharge Conferences and Rule 50 Motion

The arguments and evidence presented to the jury at the second trial dealt entirely with liability on the excessive force claim. But numerous precharge conferences were focused on questions of (1) whether, and on what basis, qualified immunity was available if the jury disbelieved Dingler's self-defense theory, and (2) whether qualified immunity should be charged to the jury.

On the district court's initial inquiry, defense counsel clarified his intent to raise the qualified immunity issue on a Fed.R.Civ.P. 50 motion. He argued that if the police had probable cause to believe (as they did here) that a fleeing suspect had committed second-degree murder, the law did not clearly prohibit the use of deadly force to prevent the suspect's escape even when there was no immediate threat of harm to anyone. 5 Defense counsel also argued that qualified immunity encompasses reasonable subjective beliefs of immediate harm, even if mistaken. Plaintiff's trial counsel objected to any qualified immunity charge, stating: "I don't think that it is relevant. I don't think there's a stitch of evidence presented before you during this trial or the last trial to support this charge."

The district court left open the possibility that the qualified immunity defense was available, but expressed concern about submitting both the excessive force issue and the qualified immunity issue simultaneously to the jury. The court anticipated that the jury would get "totally confused here if I give an excessive force charge and say, in any event, you consider qualified immunity." The court also questioned whether a qualified immunity charge would say the "same thing the jury should be told in determining whether or not the force was excessive," and thus whether there was anything "left for [the jury] to determine under the concept of qualified immunity" if it found excessive force.

The district court instead suggested submitting "specific pointed questions" to the jury. The court indicated that, depending on the jury's answers to the interrogatories, he might have to "decide whether the law was clearly established and whether qualified immunity would attach." The court explained that these were questions

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for the court, but that the...

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